Q&As

If one party wishes to get divorced but their spouse lacks capacity (and has been detained for attacking them), there is no one willing to act as a litigation friend and the Official Solicitor will not act because their costs will not be paid, what steps can the party seeking a divorce take?

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Produced in partnership with Chris Bryden of 4 King’s Bench Walk
Published on LexisPSL on 30/08/2019

The following Family Q&A Produced in partnership with Chris Bryden of 4 King’s Bench Walk provides comprehensive and up to date legal information covering:

  • If one party wishes to get divorced but their spouse lacks capacity (and has been detained for attacking them), there is no one willing to act as a litigation friend and the Official Solicitor will not act because their costs will not be paid, what steps can the party seeking a divorce take?

Section 2 of the Mental Capacity Act 2005 (MCA 2005) provides that a person lacks capacity in relation to a matter if, at the material time, they are unable to make a decision for themselves in relation to a matter because of an impairment of a disturbance of the functioning of the mind or brain, whether permanent or temporary. Capacity can therefore be lifelong or transitory. MCA 2005, s 1 provides for a presumption of capacity unless, and until, the contrary is shown.

The Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, Pt 15 apply to protected parties, which includes persons who lack capacity. By FPR 2010, SI 2010/2955, 15.2 a protected party must have a litigation friend to conduct proceedings on their behalf, and save for the filing of an application form or making an application for the appointment of a litigation friend no steps in the proceedings can be taken without the permission of the court (FPR 2010, SI 2010/2955, 15.3) and any step taken outside of these provisions is of no effect without specific the order of the court.

By FPR 2010, SI 2010/2955, 15.6, the court may appoint a person to act as a litigation friend or may appoint the Official Solicitor (OS). However where there is no person willing to act and the OS refuses to act, the powers of the

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